Clashes Between COVID-19 Measures and the Constitution Continue

By Renee Guerin.

The Constitutional Challenges:

Since the COVID-19 virus arrived in the United States in early 2020, federal and state authorities have implemented a variety of regulations aimed at slowing its spread. A number of the most successful regulations—like stay-at-home orders, travel restrictions, and limits on small gatherings—significantly curtail individual liberty. Now, both the federal and state courts are considering the merits of numerous lawsuits challenging public health regulations which implicate the individual liberties outlined in the Bill of Rights. Although these rights loom large in the American imagination, as Harvard Law Professor Charles Fried explained, “these liberties [are not] absolute; they can be abrogated for compelling grounds. And in this case the compelling ground is the public health emergency.”

"Oberwesel church interior" by barnyz is licensed under CC BY-NC-ND 2.0

COVID-19’s Impact on Religious Freedom:

One individual liberty at the forefront of many of these debates is religious freedom—specifically the Free Exercise clause of the First Amendment. Scientists have determined that many religious events carry a high risk of spreading the virus because the activities are located indoors, include people from different households, and involve singing and chanting. Many organizations have adapted to the new public health restrictions by holding services outdoors or virtually. Other institutions continue to challenge the restrictions, especially when states apply alternative regulations to local businesses. As of December 2020, religious organizations in California, Nevada, New Jersey, Colorado, and New York brought suits challenging COVID-19 restrictions with varied success.

The Supreme Court has also weighed in on the debate. At the start of the year, the Court twice upheld health regulations on religious institutions in California and Nevada; however, after Justice Amy Coney Barrett was appointed in November, the Court reconsidered its position. In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court granted injunctive relief to Catholic churches and Jewish synagogues in New York which were subject to 10- and 25-person caps. In analyzing the validity of the measures, the Court determined that the health restrictions were not of “general applicability” and applied strict scrutiny. Here, the state would have to show that its health restrictions are narrowly tailored to accomplish a compelling state interest.The Court instructed lower courts to apply strict scrutiny when reviewing state regulations which “impose different capacity restrictions on religious services relative to non-religious activities and sectors.” In his concurrence, Justice Neil Gorsuch summed up the Court’s view stating, “[i]t is time – past time – to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques.”

South Bay United Pentecostal Church v. Newsom

The Ninth Circuit also recently considered one of these constitutional challenges in South Bay United Pentecostal Church v. Newsom. In this case, the South Bay Pentecostal Church challenged California’s latest health measures which “halted all congregate indoor activities, including indoor religious services” in areas the state identified as “high risk.”

South Bay United Pentecostal Church is located in Chula Vista, California in San Diego County. Currently, southern California is one of the regions hit hardest by the coronavirus pandemic. As of January 27, 2021, the state as a whole has recorded 3,169,914 cases of COVID-19 and 38,224 deaths. In response to the pandemic’s continuous spread, California Governor Gavin Newsom has implemented a variety of complex regulatory schemes and numerous executive orders.

Sincelast August, California has utilized “the Blueprint for a Safer Economy” plan. Under this framework, the state loosens or tightens restrictions on its counties “based on the prevalence of COVID-19 in the relevant county and an activity’s calculated risk level.” The Department of Health determines the risk level by considering seven objective criteria, including the ability to:

(1) accommodate face coverings at all times; (2) allow for physical distancing; (3) limit the duration of exposure; (4) limit the amount of mixing of people from different households and communities; (5) limit physical interactions; (6) optimize ventilation; and (7) limit activities known to increase spread such as shouting, singing, and heavy breathing.

South Bay United Pentecostal Church made several arguments in its brief. The Church asserted “current restrictions on indoor services prohibit congregants Free Exercise of their theology because the Pentecostal religion places particular importance on worshipping inside the temple. Additionally, the Church argued the California discriminated against religious institutions by granting exemptions to similarly situated organizations involving large groups of people working in close proximity for extended periods of time. These activities were allowed to operate indoors while worship services in high-risk areas could only host outdoor services. The Church’s lawyer, Charles LiMandri, emphatically stated “to deny churches to hold indoor worship – even socially distanced – while allowing services that permit close personal contact and repeated touch, with client and provider separated by mere inches – is nothing short of hypocritical and discriminatory.”

Ultimately, the Ninth Circuit made three rulings. First, the court affirmed the denial of injunctive relief as to California’s temporary prohibition on indoor worship under the Regional Stayat Home Order and Tier 1 of the Blueprint plan. In reaching this conclusion, the court compared the risk profile of religious gatherings to the profiles of grocery stores, personal care services, public transportation, infrastructure worksites, and the entertainment sector. The court determined religious gatherings involve greater risk and cannot be modified to reduce risk (for example, by installing plexiglass or frequently wiping down high transmission areas in grocery stores) in the same way other industries can.

The court also concluded South Bay did not demonstrate a likelihood of success on the merits of its challenge to California’s state-wide ban on indoor singing and chanting because this ban did not result in disparate treatment of religious gatherings. Finally, the court granted an injunction as to the 100- and 200-person attendance caps on indoor worship centers currently in place under Tiers 2 and 3 of the Blueprint. The court concluded this restriction could not withstand strict scrutiny because California could have implemented less restrictive measures which took into account the size and capacity of religious centers. However, the case and the larger debate will continue. Although South Bay United Pentecostal Church received some injunctive relief, the Church has appealed to the Supreme Court.